PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1906

B-21 WINES, INC.; JUSTIN HAMMER; BOB KUNKLE; MIKE RASH; LILA RASH,

Plaintiffs – Appellants,

v.

HANK BAUER, Chair, North Carolina Alcoholic Beverage Control Commission,

Defendant – Appellee,

and

JOSHUA STEIN, Attorney General of North Carolina,

Defendant.

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CENTER FOR ALCOHOL POLICY; NORTH CAROLINA ASSOCIATION OF ABC BOARDS; AMERICAN BEVERAGE LICENSEES; NC BEER & WINE WHOLESALERS ASSOCIATION; WINE & SPIRITS WHOLESALERS OF AMERICA, INCORPORATED,

Amici Supporting Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:20-cv-00099-FDW-DCK)

Argued: March 9, 2022 Decided: June 1, 2022 USCA4 Appeal: 21-1906 Doc: 50 Filed: 06/01/2022 Pg: 2 of 50

Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge King wrote the majority opinion, in which Judge Quattlebaum joined. Judge Wilkinson wrote a dissenting opinion.

ARGUED: James A. Tanford, EPSTEIN COHEN SEIF AND PORTER, LLP, Bloomington, Indiana, for Appellants. Ryan Y. Park, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert D. Epstein, James E. Porter, EPSTEIN COHEN SEIF AND PORTER, LLP, Indianapolis, Indiana; William C. Trosch, CONRAD TROSCH & KEMMY, P.A., Charlotte, North Carolina, for Appellants. Joshua H. Stein, Attorney General, Zachary W. Ezor, Solicitor General Fellow, Jeffrey B. Welty, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. Jon Carr, JORDAN PRICE, Raleigh, North Carolina, for Amicus North Carolina Association of ABC Boards. John C. Neiman, Jr., Brandt P. Hill, MAYNARD COOPER & GALE P.C., Birmingham, Alabama, for Amici The Center for Alcohol Policy and the North Carolina Association of ABC Boards. Jo Moak, Jacob Hegeman, WINE & SPIRITS WHOLESALERS OF AMERICA, INC., Washington, D.C.; Kris Gardner, THARRINGTON SMITH LLP, Raleigh, North Carolina; Frederick R. Yarger, Teresa G. Akkara, WHEELER TRIGG O’DONNELL LLP, Denver, Colorado, for Amici Wine & Spirits Wholesalers of America, Inc., American Beverage Licensees, and North Carolina Beer & Wine Wholesalers Association.

2 USCA4 Appeal: 21-1906 Doc: 50 Filed: 06/01/2022 Pg: 3 of 50

KING, Circuit Judge:

Plaintiffs B-21 Wines, Inc., a Florida-based wine retailer, plus its owner and three

North Carolina residents, initiated this 42 U.S.C. § 1983 action in the Western District of

North Carolina, challenging a North Carolina alcoholic beverage control regime as

unconstitutional. More specifically, the Plaintiffs allege that North Carolina’s regime,

which prohibits out-of-state retailers — but not in-state retailers — from shipping wine

directly to consumers in North Carolina (the “Retail Wine Importation Bar”), contravenes

the Constitution’s dormant Commerce Clause. The Plaintiffs sought declaratory and

injunctive relief and named the Chair of the North Carolina Alcoholic Beverage Control

Commission as a defendant, in his official capacity only (hereinafter, the “N.C.